Beruflich Dokumente
Kultur Dokumente
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
CAFA's
jurisdictional
See 28 U.S.C.
1453(b)
actions).
class
action
(applying
that
Section
satisfies
1446(b)(1)
and
(b)(3)
to
class
Section
See id.
1446(b)(3).
The district court granted the plaintiffs' motion to
remand for several reasons. Romulus v. CVS Pharmacy, Inc., No. 1310305-RWZ, 2014 WL 1271767 (D. Mass. Mar. 27, 2014) [hereinafter
-2-
Romulus II].
We reverse.
removal
timely
was
under
Id.
1446(b)(3),
and
that
CVS
other
papers
provide
the
defendant
with
clear
On the
merits, we hold that CVS has adequately met its burden to show
removal.
I.
Procedural History
Ashley
Hilario,
and
Robert
Bourassa,
all
"Shift
plaintiffs
allege
that
"CVS
has
employed
many
The original complaint was filed on July 26, 2011, but was
never served.
-4-
the
class
period,
CVS
calculated
total
damages
of
$10,396,944.3
The district court rejected CVS's calculation and granted
the plaintiffs' motion to remand the case to Massachusetts state
court.
899577 (D. Mass. Mar. 16, 2012) [hereinafter Romulus I]. The court
noted that "[t]he difficulty with defendant's calculation is that
it assumes all shift supervisors lost their break each day of their
employment during the class period while the complaint clearly
states
that
'sometimes.'"
the
circumstances
Id. at *1.
leading
to
such
loss
occurred
Id.
and
attendance
data
relating
to
Massachusetts
Shift
Analyzing this
data, the plaintiffs found 116,499 meal breaks during this period
when no other Shift Supervisor was working.
this
number,
very
important
component
of
this
damages
second
notice
of
removal
on
February
15,
2013.
CVS
CVS argued
-6-
(citing Amoche v. Guar. Trust Life Ins. Co., 556 F.3d 41, 50-51
(1st Cir. 2009)).
On
the
question
of
timeliness,
the
district
court
Id. at *2.
precedent, the district court held that the defendant had failed to
identify any paper "providing information from which it later
ascertained removability for the first time."
Id.
Even if the
removability
that
could
not
have
been
previously
Id. at *2-3.
Id. (citing Sok v. U.S. Fid. & Guar. Co., No. 91-
-7-
Id. at *3 n.3.
The
Id. (quoting
This court
-8-
only
when
the
plaintiffs'
complaint
or
plaintiffs'
The district
CVS's second
exceeds
$5
million,
as
required
for
federal
Appellate Justiciability
under paragraph (1), the court shall complete all action on such
appeal, including rendering judgment, not later than 60 days after
the date on which such appeal was filed, unless an extension is
granted under paragraph (3)."
28 U.S.C. 1453(c)(2).
The
plaintiffs claim that CVS filed its appeal on April 7, 2014, and
that an appellate decision was due by May 30, 2014.
The April 7, 2014, filing was not an appeal, but a
petition for permission to appeal. Under CAFA, the appellate court
had discretion to grant CVS permission to appeal, and no appeal
-10-
See id.
persuasively reasoned:
When a party files a notice of appeal, there
is, at that very point in time, an appeal,
albeit one that may later be subject to
dismissal for jurisdictional or procedural
insufficiency.
Where, however, a party
"applies" for leave to appeal, or "seeks
permission" to do so, there is logically no
appeal until the court vested with the
authority to grant or deny leave has done so.
Patterson v. Dean Morris, L.L.P., 444 F.3d 365, 369 (5th Cir.
2006).
The sixty-day deadline for appellate consideration begins
to accrue from the date on which the court of appeals grants
permission to appeal.
Gen. Life Ins. Co., 585 F.3d 33, 37 (1st Cir. 2009).
We granted
Analysis
2014).
-11-
Cooper v. Charter
Commc'ns Entm'ts I, LLC, 760 F.3d 103, 106 (1st Cir. 2014).
Findings of fact were not made here.
A.
28 U.S.C. 1446(b)(1).
after CVS removed the case within thirty days of the initial
pleading, is not before us.
-12-
WL 2435089, at *1.
at
*2.
The
district
court
that
Section
1446(b)(3) did not apply in this case since CVS had identified no
"other paper" that set forth "new information supporting federal
jurisdiction over this case."
Id.
See id.
This is not how the statute reads and would produce a difficult-tomanage test.
The plaintiffs do argue that the text of the statute
supports the district court's reading of Section 1446(b).
First,
28 U.S.C.
in
every
case,
regardless
of
whether
the
complaint
-13-
Id. 1446(b)(3).
Section
1446(b)(1)
Section
must
be
understood
in
conjunction
with
28 U.S.C.
Section
1446(b)(3)
applies
when
the
defendant
Even if
apply
until
removability
can
first
be
ascertained
from
the
whether
Section
1446(b)'s
removal
clocks
have
been
F.3d 819, 824 (7th Cir. 2013) (collecting cases); see also Cutrone
v. Mortg. Elec. Registration Sys.,
Cir. 2014).
The
circuits.
bright-line
test
varies
in
Id. at 824.
-15-
the
amount
of
monetary
damages
sought
or
[by]
intelligence
in
ascertaining
removability.'"
Id.
at
143
(quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d
Cir. 2001)). Although defendants must apply a reasonable amount of
intelligence, they "have no independent duty to investigate whether
a case is removable."
Id.
LLC, 707 F.3d 1136, 1140 (9th Cir. 2013) (quoting Whitaker, 261
F.3d at 206).
Id.
-16-
from
which
the
amount
in
controversy
can
easily
be
The defendant
data
calculated
from
information
CVS
possessed
from
the
remove early and quickly, they say, would ensure the efficient
resolution of removal questions.
-17-
in
controversy
immediately.
often
will
be
difficult
to
ascertain
If a defendant sought
plaintiffs
are
also
"in
position
to
protect
Roth v. CHA
Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1126 (9th Cir. 2013).
The Ninth Circuit explained, "[i]f plaintiffs think that their
-18-
Id.
By
Id.
"the obvious purpose of starting the 30-day clock only after the
defendant's receipt of a 'paper' revealing the case's removability
is to ensure that the party seeking removal has notice that the
case is removable before the limitations period begins to run
against it." Woburn Five Cents Sav. Bank v. Robert M. Hicks, Inc.,
930 F.2d 965, 970 (1st Cir. 1991).
-19-
2.
Plaintiffs' Complaint
multiply
the
total
time
of
such
breaks
by
the
Shift
As the
from
which
CVS
could
have
easily
ascertained
removability.
3.
-20-
28 U.S.C.
1446(b)(3).6
possibly
qualifying
document"
was
an
sent
to
CVS
by
The
Id.
28 U.S.C. 1446(b)(3).
The doctrine of
ejusdem generis would suggest that the term "other paper" should be
limited to documents similar to a pleading, motion, or order.
See
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001)
("[T]he general words are construed to embrace only objects similar
in nature to those objects enumerated by the preceding specific
words." (citation omitted) (internal quotation marks omitted)).
Relying on this canon of statutory interpretation, the district
court in Mill-Bern Associates, Inc., concluded that "other paper"
must be limited to documents that are "formally filed and/or served
on the parties," like a filed affidavit.
69 F. Supp. 2d at 243.
interpretation.
Specifically,
Section
1446(c)(3)(A)
states:
If the case stated by the initial pleading is
not removable solely because the amount in
controversy does not exceed the amount
specified in section 1332(a), information
relating to the amount in controversy in the
record of the State proceeding, or in
responses to discovery, shall be treated as an
"other paper" under subsection (b)(3).
28 U.S.C. 1446(c)(3)(A) (emphasis added).
It is nevertheless
See id.
(2007).
In
general,
"[t]he
federal
courts
have
given
the
14C Wright
As
such,
[V]arious
discovery
documents
such
as
deposition
transcripts,
answers
to
interrogatories and requests for admissions,
as well as amendments to ad damnum clauses of
complaints, and correspondence between the
parties and their attorneys or between the
attorneys usually are accepted as "other
papers," receipt of which can initiate a 30day period of removability.
Id. (citations omitted).
Two
courts
of
appeals
have
held
that
informal
Accident Insurance Co., the Fifth Circuit held that a postcomplaint demand letter, which offered to settle for above the
amount in controversy, triggered Section 1446(b) as an "other
paper." 230 F.3d 759, 761-62 (5th Cir. 2000). Likewise, the Ninth
-23-
The
Senate
See id.
Report
accompanying
the
passage
of
CAFA
-24-
conversation,
calculations.
both
parties
orally
exchanged
In a
their
in written form, which the plaintiffs did by email on the same day.
The email estimated 116,499 meal breaks without Shift Supervisor
coverage from August 2010 through June 2012.
In theory, one more bit of information would be helpful
for precision.
-25-
Whether
data
even
exists
on
the
presence
of
Store
Going
The
As the plaintiffs
of breaks at issue.
According to CVS,
Plaintiffs' review of the Time & Attendance
Data revealed a total of 116,499 potential
instances in which a violation occurred during
the period August 2010 through June 2012.
This equates to 5,065 alleged violations per
month.
Extrapolating this average over the
class period of fifty-five (55) months (three
years prior to the date the Complaint was
filed through March 31, 2013) yields 278,575
alleged violations. Thus, using plaintiffs'
estimate of the number of alleged violations
and an average hourly wage for Shift
Supervisors in Massachusetts, the potential
damages exceed $5,000,000 as follows:
278,575 unpaid meal periods x $13.43/hr
(average hourly rate) x 0.5 hours (30 minute
meal period) = $1,870,631.
Taking into account treble damages mandated by
the Wage Act, plaintiffs' alleged damages are
-27-
The
district
court
observed
that
the
information
contained in the plaintiffs' email was based on CVS's own data and
that CVS could have performed its own analysis to reach the same
estimate earlier in litigation.11
at *2.
See 28
U.S.C. 1446(b)(3).
The email qualifies as an "other paper from which it may
first
be
ascertained
that
the
case
is
one
which
at least $5,611,893
$5,611,893).
($1,870,631
11
thirty days.
Id.
exclusive
of
interest
and
costs."
28
U.S.C.
Id. at 48.
12
We have previously
Id. at 50.13
145.
CVS updated its damages estimate in its opposition to the
plaintiffs' motion to remand.
discounted the number of meal breaks when there was no other Shift
Supervisor working by 15 percent in an attempt to estimate the
number of meal breaks at which no managerial employees were
13
present.
hourly
reasonable
included
estimate
Overtime/Premium
of
attorneys'
rates,
fees.15
and
CVS
added
provided
a
the
plaintiffs
raised
objections
to
CVS's
revised
premised
identified
in
on
the
the
assumption
Complaint
that
continue
the
to
unlawful
this
day."
Fourth, the plaintiffs object that the estimate for attorneys' fees
is "entirely speculative."
The
arguments
on
district
these
court
points
concluded
are
that
persuasive,
the
and
"Plaintiffs'
I
find
that
15
defendant,
despite
having
'better
access
to
the
relevant
But, it
Multiplying the
-32-
Conclusion
This
-33-
Appendix A:
CVS's Damage Calculations Through July 23, 2013
Total Number of Violations
without Shift Supervisor
Coverage from Email
116,499
99,024
23
4305.4
59
254,018
$13.53
$1,718,432
Potential Exposure
Incorporating OT/Premium Rates
$1,906,428
Treble Damages
$5,719,285
$572,000
$6,291,285
-34-